Vijay Bishnoi, J.This criminal appeal has been preferred by the appellants being aggrieved with the judgment dated 31.05.1993 passed by the Sessions Judge, Jaisalmer (hereinafter referred to as the trial court) in Sessions Case No.96/91, whereby the trial court has convicted the appellants for the offences punishable under Section 147 and 395 IPC and sentenced them as under:-

Offence u/S.:

Sentence awarded (for each of appellants):

395 IPC

3 years rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, further undergo 9 months rigorous imprisonment.

147 IPC

3 years rigorous imprisonment.

2. Brief facts of the case are that as per the prosecution story, when complainant-Devi Singh was taking his herd of sheeps and goats to the pond to enable them to drink water on 14.11.1990 at about 11:00 AM then suddenly the accused appellants came there and forcibly snatched his herd and upon objecting by him, they assaulted him and thereafter, when the complainant-Devi Singh raised alarm then Shahu Khan and Sujan Singh came there and rescued him. As per the prosecution story, the accused appellants run away with 360 sheeps and goats of the complainant-Devi Singh.

3. On the basis of the complaint submitted by complainant-Devi Singh, the police registered a case against the accused appellants for the offences punishable under Sections 147, 148, and 395 IPC.

4. Later on, when the complainant-Devi Singh came to know that the sheeps and goats, snatched by the accused appellants from him, were kept in Kanji House of Pokaran then he got them released after paying fine.

5. The police, after thorough investigation, filed charge-sheet against the accused appellants for the offences punishable under Sections 148 and 395 IPC.

6. To prove the charges against the accused appellants, the prosecution produced as many as 11 witnesses and got exhibited certain documents. The statements of the accused appellants were recorded under Section 313 Cr.P.C., wherein they replied all the question in negative and stated that as a matter of fact when the accused persons objected for grazing the herd of Abu Khan in their agriculture fields, the complainant-Devi Singh and other inflicted injuries upon them. In defence, the accused appellants got exhibited 7 documents.

7. The trial court, after hearing learned counsel for the parties and after taking into consideration the evidence available on record, has convicted the accused appellant for the offences punishable under Section 147 and 395 IPC and sentenced them as stated above.

8. Learned counsel for the appellants has argued that even if it is assumed that the accused appellants took away the herd of sheeps and goats of complainant-Devi Singh, the said movement of the herd was without any dishonest intention. It is argued that unless there is theft, which is necessary for the robbery and dacoity, the offence punishable under Section 395 IPC cannot be said to be made out against the accused appellants.

9. Learned counsel for the appellants has further argued that for the same incident the accused appellants have also filed a criminal case against the complainant party for committing trespass and causing damage and they have proved before the trial court that in the said incident they have also sustained injuries. It is contended that the injuries sustained by the accused appellants have not been explained by the complainant party and looking to this fact itself the prosecution against the appellants has failed. Learned counsel for the appellants has, therefore, argued that the trial court has illegally convicted the accused appellants for the offences punishable under Section 147 and 395 IPC, though, there is no evidence available on record to convict them for the aforesaid offences. Hence, the impugned judgment passed by the trial court is liable to be quashed and set aside and the accused appellants are liable to be acquitted.

10. Per contra, learned Public Prosecutor has opposed the prayer made on behalf of the accused appellants.

11. Heard learned counsel for the parties and carefully scrutinized the record of the case.

12. As per the prosecution story, the accused appellants took away the herd of sheeps and goats of the complainant-Devi Singh and got them deposited in the Kanji House of Pokaran. Admittedly, the complainant-Devi Singh took the custody of herd of sheeps and goats from that Kanji House of Pokaran, after paying some fine or fee.

13. The argument of the learned counsel for the appellants that for the purpose of proving a offence of robbery and dacoity, it is necessary for the prosecution to prove that there is a theft, is having merit.

14. As per Section 390 IPC, in all robbery there is either theft or extortion.

15. Theft is defined under Section 378 IPC, which says that whoever, intending to take dishonestly any moveable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft.

16. As stated earlier, in this case, the appellants though took away the herd of sheeps and goats of the complainant-Devi Singh and got the same deposited in the Kanji House of Pokran.

17. It is possible that the herd of sheeps and goats of the complainant-Devi Sigh were destroying the standing crops of the accused appellants and, therefore, they took away the said herd of sheeps and goats and got them deposited in the Kanji House of Pokaran.

18. Though, the trial court has held that the agriculture fields of the accused appellants is situated 2 Kms. away from the place of incident and only looking to this fact, it cannot be concluded that the accused appellants took away the herd of sheeps and goats of the complainant-Devi Singh with dishonest intention and committed the offence of theft.

19. The prosecution has failed to produce any evidence on record to suggest that the accused appellants took away the herd of sheeps and goats of the complainant-Devi Singh with dishonest intention. It is also to be noticed that the for the same incident the accused appellants have also filed a criminal case against the complainant party and as per their version when they tried to stop the herd of sheeps and goats of the complainant from destroying their corps, then a fight took place in which the accused appellants have also suffered injuries, however, those injuries sustained by them have not been explained by the prosecution.

20. Looking to the above facts and circumstances of the case and particularly the fact that the prosecution has failed to prove that the accused appellants took away the herd of sheeps and goats of the complainant-Devi Singh with dishonest intention or committed the offence of theft, the conviction of the accused appellant for the offences punishable under Sections 147 and 395 IPC is not liable to be sustained.

21. In view of the above discussions, the present appeal is allowed. The impugned judgment dated 31.05.1993 passed by the Sessions Judge, Jaisalmer in Sessions Case No.96/91 is set aside. The accused appellants are acquitted for the offences punishable under Sections 147 and 395 IPC. They are on bail, their bail bonds stands discharged.